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People v. Herrera





APPEAL from the Circuit Court of Cook County; the Hon. BRIAN B. DUFF, Judge, presiding.


Following a bench trial, defendant John Herrera was convicted of three counts of attempt murder, and was sentenced to 4 years in the Department of Corrections. Defendant appeals, contending that his constitutional right to representation by counsel was violated, in that defendant's trial counsel was not the attorney that defendant had retained and paid to represent him. Defendant also asserts that the trial court erred in failing to strike testimony regarding defendant's post-arrest oral statement, because that statement should have been disclosed pursuant to a discovery motion. Defendant further contends that he was not proved guilty beyond a reasonable doubt.

On May 14, 1978, at approximately 9:45 p.m., a number of young people were congregated on the northeast corner of 25th Street and Homan Avenue in Chicago. Police testimony indicated that this area is the "turf" of the Latin Kings street gang. Without warning, two men on the southeast corner of the intersection opened fire on the group at the northeast corner. One man was firing a .22-caliber rifle with a shortened stock, and the other man fired a pistol. Loretta Montez, age 15, was shot in the calf. Debbie Dunavan, age 15, was wounded in the abdomen. Efran Rios, age 18, was shot in the back. None of the three victims belonged to any street gang.

The southeast corner, where the gunmen stood, was illuminated by a street lamp. Although none of the victims could identify the gunmen, three individuals standing on or near the northeast corner testified that they recognized one of the shooters. Augustine Zambrano, Noel Roldan, and Oscar Solis all testified that they knew defendant's face and name from previous neighborhood encounters, and that defendant was the man with the rifle. Zambrano, Roldan, and others chased the two gunmen down the street, but the men eluded their pursuers. In the course of the chase, the man with the rifle looked back at the pursuers, affording Zambrano and Roldan a second chance to recognize him.

Zambrano, Solis, and Roldan were current or former members of the Latin Kings. Defendant was a member of a rival gang, the 26th Street Boys. On cross-examination, Zambrano admitted that gang members occasionally revealed to police the names of rival gang members involved in fights, in order to facilitate police investigation of rival gangs. The State, attempting to rebut the inference that the witnesses had falsely implicated defendant, offered Roldan's and Solis' account of events at the police station shortly after the shooting. Police initially arrested Rosalio Martinez, a 26th Street Boy, in connection with the shooting. At the police station, Roldan and Solis told officers that Martinez was not one of the gunmen. Martinez was not charged with the crimes and was later released.

Orlando Ramos, a former Latin King, testified for the defense. He stated that Rosalio Martinez was one of the shooters, and that defendant was not. The State countered Ramos' testimony by offering the statement of Loretta Montez, one of the victims. Montez' testimony placed Ramos well to the north of the intersection, where his ability to see the gunmen would be questionable.

John Herrera testified in his own defense, and offered the testimony of three other alibi witnesses. Defendant stated that on the evening of May 14, he went to the home of his girlfriend, Josephine Granja. There they were joined by Beatrice Saenz, a friend of Josephine. The three decided to go to a motion picture and began walking to a bus stop. On the way, defendant's brother and sister-in-law, Jose and Julia Herrera, drove by and offered the three a ride. On the way to the theater, the group attempted to ascertain the time. They passed by the large outdoor clocks of the Crane Company at 41st and Kedzie and noticed that the clocks were inoperative. At 55th and Kedzie they passed Talman Federal Savings and Loan and noted that the time on the outdoor clock was 8:52 p.m. Shortly thereafter, they arrived at the Marquette Theater. Jose and Julia dropped defendant and the two girls off at the entrance and returned home. The three stayed in the theater until about midnight and returned home by bus. Defendant spent that night at Josephine's brother's house. Having learned that the police were looking for him, defendant surrendered the next day. The three alibi witnesses (Beatrice Saenz, Josephine Granja, and Julia Herrera) corroborated every material aspect of defendant's testimony.

During the State's case, Noel Roldan testified to an incident of intimidation that occurred on May 20, 1978, 6 days after the shooting. Roldan was in a tavern when he encountered defendant and two companions, Danny Gonzalez and Junior Marquez. Roldan testified that defendant asked him if he was going to testify in court and then threatened to kill him. Defendant allegedly punched him in the eye while Gonzales tore a gold chain from around his neck. On direct examination, defendant admitted that there had been a confrontation with Roldan in the tavern, but stated that he simply asked Roldan why he was lying about the incident of May 14. Defendant indicated that Gonzalez was more vigorous in his upbraiding of Roldan; defendant stated that Gonzalez pounded on Roldan's chest, took his gold chain, and punched him in the eye.

After defendant was charged in connection with the shooting, he retained attorney Sam Adam. Defendant paid Sam Adam $1000, believing this to be full payment for Mr. Adam's representation. Mr. Adam filed an appearance and appeared on defendant's behalf on four occasions. At other pretrial proceedings, defendant was represented by attorneys John DeLeon and Marvin Bloom. DeLeon and Bloom are sole practitioners, as is Adam, but the three attorneys share office space. Defendant did not retain DeLeon or Bloom, and neither filed an appearance in defendant's case. Whenever DeLeon or Bloom appeared in Adam's stead, defendant asked them why Mr. Adam was not present. On the day set for trial, Sam Adam was absent and DeLeon and Bloom were present. Defendant stated that he learned 5 minutes before the trial was to start that Sam Adam would not be trying the case. DeLeon and Bloom stated that they learned on the morning of the trial that they would be conducting the defense. Defendant said nothing to the trial court concerning the substitution of attorneys.

On the morning of the second day of the trial, attorneys DeLeon and Bloom moved to withdraw from the case, stating that defendant had fired them. Defendant then referred to his refusal to sign over his bond money to the attorneys:

"THE DEFENDANT: The first time I walked into the office, and they said you give us $1,000 and we will take care of you. And now they told me to sign this, and I said it wasn't my money. I said it is my brother's money. I ain't willing to rob my brother for something that I have been accused of.

THE COURT: Well, Mr. Herrera, are you firing him, or do you want him to represent you?

THE DEFENDANT: He can't represent me if I can't pay him, and I ain't got any money to pay him."

The trial court suggested a short recess to resolve the problem, after which the ...

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